Queensland District Court Dismisses WHS Appeal: Clarity and Key Lessons arising from B.M.D. Constructions Pty Ltd v Nicholson [2026] QDC 5

The District Court of Queensland has dismissed B.M.D. Constructions’ appeal against its Work Health and Safety (WHS) conviction arising from a 2020 incident in which a pedestrian worker was struck by a grader while laying geofabric on a large civil construction project. The Court’s reasons reinforce a trend of judicial scrutiny on how effectively Persons Conducting a Business of Undertaking (PCBUs) implement, supervise and enforce their safety systems in dynamic work environments.

The prosecution arose after labour hire worker, Mr Sills, suffered a serious ankle injury and laceration to his calf when a breakdown in communication led the grader operator to believe it was safe to recommence grading. Although B.M.D. had extensive documented systems, training, and site rules, the Magistrate found, and the District Court confirmed, that key controls were not implemented at the time of the incident. Central to the appeal was the question of what, in the circumstances, constituted “reasonably practicable” measures to prevent the risk of pedestrian–plant interaction. 

On appeal, B.M.D. argued that the Magistrate erred by inferring the absence of particular safety instructions, exclusion zones and control measures, especially when the workers involved were trained, experienced, and had previously communicated effectively with the operator. The Court rejected this, emphasising that while B.M.D.’s systems were sound on paper, the incident revealed “insufficient compliance and enforcement” of those procedures on the day. The Court was particularly influenced by the absence of evidence from the site supervisor and grader operator. Without their testimony, it was impossible to establish what instructions were given or not given, and this evidentiary gap was decisive against B.M.D.

A critical finding was the need for active supervision. Whilst the Court accepted that the geofabric task was short duration work, it also found that the task presented an “extreme risk” requiring a supervisor or spotter to be physically present. Even though B.M.D.’s documents identified controllers and spotters as standard risk controls for mobile plant, no such person was assigned to oversee this activity. The Court considered it reasonably practicable to do so, particularly given how busy and hazardous the site was on the day, and noted that such supervision would likely have prevented the incorrect “thumbs up” signal that triggered plant movement. 

The Court was more cautious regarding physical barriers such as hats and flagging. Although B.M.D. identified delineation as a control measure in other contexts, there was insufficient evidence that barriers were available, suitable, or would have prevented this incident. The Court refused to draw inferences from photographs taken the day after the event, and this part of the prosecution case remained unproven. Even so, deficiencies in supervision and communication were sufficient to establish the breach. 

For insurers and in house legal teams, the judgment underscores the evidentiary challenges in WHS matters. Missing witness accounts, particularly from supervisors or operators, significantly weaken defence prospects. The Court’s approach also highlights that worker inadvertence or miscommunication will rarely break the chain of causation. PCBUs are expected to anticipate foreseeable human error and maintain active oversight to prevent it. Comprehensive systems are necessary but not sufficient – what matters is evidence that the system was functioning on the day in question. 

The decision is a reminder that WHS risk, claims defensibility and incident response are tightly linked. Organisations must ensure their paperwork, supervision, communication protocols and exclusion zones are not only established but verifiably implemented during rapidly changing tasks. In high risk settings where people and plant interact, courts will continue to expect a proactive supervisory presence.